Published in Vox
Like Menashi’s ethnonationalism piece, a 2014 article he cowrote with his former boss, Judge Douglas Ginsburg, also walks right up to the edge of embracing a deeply radical ideology without quite taking the final step into the abyss.So far, this second article hasreceived less attention than the first — although it is discussed in an opposition research memo released by the liberal Alliance for Justice.
The article is styled as a review of a book by law professor Richard Epstein, a staunch libertarian known for his burn-it-down approach to government. The meat of the article trumpets a handful of lower court decisions that question the longstanding consensus that courts should not interfere with economic regulation absent an explicit constitutional command to do so. That consensus emerged in response to an era of conservative dominance that legal scholars refer to as the Lochner Era.